Miocene Ditch Co. v. Campion Min & Trading Co.

• Decision Date: 15 July 1912
• Docket Number: 1,977.
• Citation: 197 F. 497
• Parties: MIOCENE DITCH CO. v. CAMPION MINING & TRADING CO.
• Court: U.S. Court of Appeals — Ninth Circuit

197 F. 497

MIOCENE DITCH CO. v. CAMPION MINING & TRADING CO.

No. 1,977.

United States Court of Appeals, Ninth Circuit.

July 15, 1912

Frohman & Jacobs, of San Francisco, Cal., for petitioners.

E. S Pillsbury and Horatio Alling, both of San Francisco, Cal for respondent Miocene Ditch Co.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

By petition filed herein on behalf of the Wild Goose Mining &amp Trading Company and C. B. Greeley the court is asked to recall its mandate issued upon a final judgment here given at the September term, 1911, by which judgment that of the trial court was reversed, and the cause remanded to it for a new trial. Upon the going down of the mandate, the cause was again set for trial and tried, after which the trial court announced its conclusion, but before the making of findings or the entry of judgment the present petitioners presented to the court a petition for leave to there intervene in the case and set up their alleged rights in the property in question. That application it appears is still pending and undetermined in the court below. The moving papers in the proceedings here further show that the motion made for the recall of our mandate is based upon alleged collusion between the attorneys for the respective parties to the suit, to the alleged injury of the petitioners, who now claim to be the real parties in interest. The motion not having been made until several months after the end of the term at which the judgment of this court was given and its mandate sent down, the respondent raises the question of the jurisdiction of the court to grant the petitioners' motion by moving to dismiss the petition. However gross the fraud alleged as the basis of the petitioners' request may be, and however much it may entitle the petitioner to intervene in the case where it is now pending, or to file an independent or other bill to obtain redress, we are of the opinion that this court is without power to recall its mandate and vacate its judgment under the circumstances appearing. The general rule that jurisdiction of the federal courts over their judgments and orders ceases with the ending of the term and the issuance of mandate is not disputed, but the petitioners contend that the rule does not apply where the judgment or order complained of was procured by fraud.

A motion to set aside a judgment for fraud after the term has in it, as said by Judge McCrary in Grames v. Hawley (C.C.) 50 F. 319, 'all the elements of a bill in chancery. ' The court there further said:

'The fact that fraud in the settlement of this suit is charged in no manner affects the question of jurisdiction or the mode of acquiring it. A judgment can no more be set aside upon motion after the term upon the ground of fraud than upon any other ground. A hearing upon proper notice upon that question is the right of the party charged with the fraud. We cannot assume the truth of the charge for the purpose of affecting the decision of the question of jurisdiction.'

In United States v. Aakervik (D.C.) 180 F. 137, 143, it was said by Judge Wolverton:

'Courts generally, excepting some perhaps of the more limited, have jurisdiction to reverse their own judgments and decrees during the term at which they are rendered. In pursuance of such authority, they may, for error of law, or for fraud, mistake, or any irregularity that might seem to them to have affected either of the parties to the controversy injuriously, set aside their judgments and decrees, and award a new trial or rehearing, and thus give opportunity for righting whatever wrong may have been engendered. After the term has ended, however, the authority of the courts for this purpose ceases, unless extended by statute, or by motion, or some appropriate procedure taken within the time. This rule applies as well to equity procedure as to procedure at law. Other means of relief for the errors of the court are usually afforded by writ of error or appeal, and in equity a bill of review will lie, within rules prescribed by law, for evidence discovered after the decree has become final. All such proceedings are taken and prosecuted in the same suit or action, and not by separate controversy. When, therefore, the term is at an end without the appropriate initiation of an available proceeding to revise or set aside the court's final judgment or decree, and no appeal or other means of review is prosecuted within the time afforded by authoritative regulation, such judgment or decree becomes an absolute finality, forever binding upon the parties and their privies, utterly without power of change, revision, revocation, or relief within the cause or proceeding in which it is rendered. There are many causes, however, for which a new and independent suit will lie to set aside or annul a judgment or decree. Some of them may be mentioned. Thus, where the unsuccessful party has been

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